In State of Ohio v. Avell, (OH App., Sept. 25, 2026), an Ohio state appellate court reversed the criminal conviction of Christopher Avell, the founder of Dad's Place, a Christian church in Bryan, Ohio, which offers an "overnight ministry" to provide shelter to anyone who needs it. Avell and the city have been in litigation (both civil and criminal) over whether the "overnight ministry" triggers fire code requirements for residential use, including an expensive sprinkler system. A Municipal Court convicted Avell of knowingly violating the city's fire code and sentenced him to a suspended jail sentence and a $200 fine. On appeal, in a 2-1 decision, the Ohio appellate court remanded the case to the trial court because the trial court had failed to rule on Avell's constitutional arguments.
Presiding Judge Osowik dissented in part, saying that the court should have reversed the conviction, instead of remanding it for further proceedings. He based his decision in part on the city's loss last April in an action for an injunction against Dad's Place (See prior posting). Judge Osowik said in part:
To begin, this court recently determined that the City's enforcement of the fire code was not generally applicable and therefore, strict scrutiny applied to Dad's Place's Free Exercise claim under the U.S. Constitution....
In [the prior civil decision] ... there was no dispute that appellant sincerely believed that he was called to operate a 24/7 ministry. Accordingly, we looked to whether Dad's Place's religious exercise was burdened by the enforcement of the fire code and determined that it was, noting that Dad's Place did not have the financial means to install a sprinkler system, that the installation of said sprinkler system would require Dad's Place to cease its religious exercise for a significant period of time, that Dad's Place could not open a second location for sleeping accommodations, nor would that satisfy its religious beliefs, because they required Dad's Place to welcome all people into the church, not an offsite homeless shelter....
Next, we found that the enforcement of the fire code was not generally applicable because "it allows the government to exercise significant discretion in the enforcement of the code."...
In sum, in [the civil case] ..., this court held that strict scrutiny review applied to Dad's Place's Free Exercise claim under the U.S. Constitution....
[The Ohio Constitution's Conscience Clause] provides broader protections of religious rights than that of the federal Constitution.... Therefore, laws that even "tangentially affect religion" and even simply interfere with the rights of the conscience are unconstitutional unless they pass strict scrutiny...
The City believes that its prosecution of appellant boils down to the enforcement of uniform fire safety codes on a building designated as mercantile and assembly, but is being used as a congregate residential facility. The City contends that appellant's "use places visitors to Dad's Place in danger as well as the residents of the second-floor apartments, neighboring businesses, and first responders. The safety of these people clearly demonstrates a compelling state interest." I disagree—the fact that many exceptions to the fire code exist and are applied to similarly situated facilities for non-safety reasons, destroys the State's argument that its enforcement of the fire code is for safety purposes.
The City attempts to rebut the comparisons between Dad's Place and the residential buildings exempted from the fire code by looking to differences such as communal space in the church versus separate apartments or hotel rooms.... Notably, however, the City continuously goes back to what it deems as the "most important" distinction between Dad's Place and the exempted residential facilities—that they received their occupancy based on the fire code in place at the time of issuance, or in other words, that these other buildings were grandfathered into the current fire code. I believe that this is fatal to the City's argument.
... The reality ... is that these buildings are not compliant with the City's fire code ... because of a cost-based exemption that they are grandfathered into.
First Liberty Institute issued a press release announcing the decision.
